196 F.

2d 1010

ALL STATES FREIGHT, Inc.

v.
MODARELLI.
No. 10666.

United States Court of Appeals Third Circuit.

Argued April 21, 1952.
Decided May 8, 1952.

Nicholas Conover English, Newark, N.J. (McCarter, English & Studer,

Newark, N.J., on the brief), for petitioner.
Lester J. Kramer, Teaneck, N.J., for respondent and for intervenor.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN,
KALODNER, STALEY and HASTIE, Circuit Judges.
GOODRICH, Circuit Judge.

This petition for mandamus seeks an order against a judge who has refused to
transfer a case under 28 U.S.C. 1404(a).

The plaintiff sued the defendant in the federal court in New Jersey. The
defendant moved to transfer the case to the federal court for the Northern
District of Ohio, Eastern Division, claiming, among other reasons, that they had
rights against another whom they wished to make a third-party defendant and
who was subject to suit in Ohio though not in New Jersey. The trial judge
denied the motion.

We start, of course, with the language of the statute. It reads:

'For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it
might have been brought.'

This is a section which is new in the United States Code. It first appeared
September 1, 1948. The course of litigation in these formative years will
determine whether the objective clear in the wording of the section is to be
accomplished. The statute limits the privilege of the plaintiff to have his lawsuit
tried in the forum of his choosing if he can there get jurisdiction over the
defendant. The purpose of the limitation is clearly to make the inevitably
uncomfortable (for the litigant) judicial process cheaper and more convenient
and, if possible, more prompt.

Like many another well-intentioned procedural improvement, this one is in a

fair way to be defeated by judicial construction.

In the first place some district judges are applying section 1404(a) with a
limitation imposed by the Supreme Court upon the doctrine of forum non
conveniens as found in the Gulf Oil and Koster decisions. 1

The forum non conveniens doctrine is quite different from Section chosen by
the plaintiff is so completely inappropriate and inconvenient that it is better to
stop the litigation in the place where brought and let it start all over again
somewhere else. It is quite naturally subject to careful limitation for it not only
denies the plaintiff the generally accorded privilege of bringing an action where
he chooses, but makes it possible for him to lose out completely, through the
running of the statute of limitations in the forum finally deemed appropriate.
Section 1404(a) avoids this latter danger. Its words should be considered for
what they say, not with preconceived limitations derived from the forum non
conveniens doctrine.

The second danger which threatens the usefulness of Section 1404(a) comes
from the appellate courts. It is settled in this Circuit and elsewhere that an order
either making a transfer or refusing a transfer is not appealable.2 Now the effort
is being made both in this court and elsewhere to substitute for appeal a review
by mandamus whenever the losing party on a motion to transfer wants an
advance review of the ruling on this point.

10

We think that this practice will defeat the object of the statute. Instead of
making the business of the courts easier, quicker and less expensive, we now
have the merits of the litigation postponed while appellate courts review the
question where a case may be tried.

11

Every litigant against whom the transfer issue is decided naturally thinks the
judge was wrong. It is likely that in some cases an appellate court would think

so, too. But the risk of a party being injured either by the granting or refusal of
a transfer order is, we think, much less than the certainty of harm through delay
and additional expense if these orders are to be subjected to interlocutory
review by mandamus.
12

We do not propose to grant such review where the judge in the district court has
considered the interests stipulated in the statute and decided thereon.3 Our
policy was indicated in our decision in Gulf Research and Development
Company v. Leahy4 which concerned a different section of the Code. The
discussion there regarding the reason why caution should be exercised with
regard to granting mandamus against a judge is fully applicable here.

13

We realize that the view we express is not the one which some of our judicial
brethren are following with regard to this statute. 5 But we cannot escape the
conclusion that it will be highly unfortunate if the result of an attempted
procedural improvement is to subject parties to two lawsuits: first, prolonged
litigation to determine the place where a case is to tried; and, second, the merits
of the alleged cause of action itself.

14

The petition for mandamus will be denied.

Gulf Oil Corp. v. Gilbert, 1947, 339 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, and
Koster v. Lumbermens Mutual Casualty Co., 1947, 330 U.S. 518, 67 S.Ct. 828,
91 L.Ed. 1067

See Paramount Pictures v. Rodney, 3 Cir., 1951, 186 F.2d 111, certiorari
denied 340 U.S. 953, 71 S.Ct. 572, 95 L.Ed. 687; Shapiro v. Bonanza Hotel
Co., 9 Cir., 1950, 185 F.2d 777; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d
329, certiorari denied 340 U.S. 851, 71 S.Ct. 79, 95 L.Ed. 624; Jiffy Lubricator
Co. v. Stewart-Warner Corp., 4 Cir., 1949, 177 F.2d 360, certiorari denied 338
U.S. 947, 70 S.Ct. 484, 94 L.Ed. 584

We granted it once, not to review the exercise of a judge's discretion, but to

indicate that the discretion should be exercised. Paramount Pictures v. Rodney,
3 Cir., 1951, 186 F.2d 111

3 Cir., 1951, 193 F.2d 302, certiorari granted April 21, 1952. 72 S.Ct. 762. This
case well illustrates the dangers of interlocutory review of these orders. The
case actually involved 28 U.S.C. 1406(a) which covers similar, but not
identical transfers. The complaint was filed on March 20, 1950, in the United
States District Court for the Southern District of California. The motion for

dismissal or transfer under Sec. 1406(a) was filed on April 1, 1950, and granted
on January 2, 1951, by order of the District Court dated August 18, 1950. On
November 20, 1950, the Ninth Circuit Court of Appeals declined to grant
review by mandamus, 185 F.2d 457. The case was then entered on the docket
of the Delaware Federal District Court on Jan. 2, 1951, and promptly a motion
to transfer the case back to California was filed. The district judge denied this
order on May 23, 1951. Gulf Research & Development Co. v. Schlumberger
Well Surveying Corp., D.C., 98 F.Supp. 198. This court declined to review the
question by mandamus on December 13, 1951, and the Supreme Court granted
certiorari on April 21, 1952, 72 S.Ct. 762. As yet the venue question must still
be litigated in the Supreme Court and no action has been taken to get the case
solved on the merits
5

See Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178
F.2d 866, 869-70; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329; Nicol v.
Koscinski, 6 Cir., 1951, 188 F.2d 537; Wiren v. Laws, D.C. Cir., 1951, 194
F.2d 873